Monday, January 5, 2015

IRS Attorney Advises Agents Not To Be Intimidated By No Trespassing Signs

The IRS has a fairly ferocious reputation in some circles. Personally, I think the Service's ferocity is somewhat exaggerated. Consider, for example, PMTA 2012-003 .

If the IRS is coming to visit you uninvited, there is a decent chance that you are pretty far out of compliance. Stockpiling weapons and threatening to wreak havoc on anybody who approaches is probably not a good strategy in that you will end up being out of compliance with laws other than the tax laws. Read about Ed and Elaine Brown, whom Ron Paul likened to Gandhi. (I kind of wondered about the gun part, but maybe if Gandhi had been in New Hampshire, he would have been more sympathetic to guns.) Is there a way to intimidate IRS visitors without breaking the law ? Apparently, up until now, there has been. Put up a "No Trespassing" sign.

Susan Watson, an IRS attorney, indicates in the PMTA (Program Managers Technical Assistance) that agents may have been a bit too intimidated by "No Trespassing" signs.

You have requested advice regarding how revenue officers should respond to No Trespassing signs. IRM 5.1.3.2.3 lists Safety Do's and Don'ts. One is “Observe No Trespassing signs.” Several revenue officers have interpreted IRM 5.1.3.2.3 as prohibiting them from any entry to premises with such a sign even though these signs often appear in places frequented by the public such as shopping centers. It appears that these revenue officers are confused about what constitutes trespassing. Furthermore, they may be concerned about possible liability. The definition of trespass, the elements of trespass, and defenses to trespass turn on state law. Since collection is national in scope, the analysis below will draw from state law sources.

There are two types of premises that revenue officers might reasonably be expected to enter in furtherance of their collection duties. One is a business establishment. The other is a residence.

Opening a business establishment to transact business with the public is permission to enter. A person who enters the facility, at a reasonable time and in a reasonable manner, has the implied consent of the owner or possessor to be there. This invitation presupposes that those entering will exhibit conduct in keeping with a business purpose. If a revenue officer goes to a taxpayer's front door to deliver documents or make other contact, the revenue officer is not trespassing. If the taxpayer then tells the revenue officer to leave, the revenue officer should leave. Usually at that point he has completed his task. We suggest revising the IRM to tell the revenue officer he can go up to someone's front door to deliver a summons or other document requiring personal service even if there is a “no trespassing” sign posted. Revenue officers should use caution and only enter areas of a private residence that are commonly understood to be open to the public such as the area of the front door and porch. The UPS man would probably deliver a package to the front door as would the mail carrier. Until told otherwise, the revenue officer has a valid business reason to be there. Revenue officers should approach premises with a no trespassing sign in a rural area more cautiously then one posted on a suburban residence with no fence. If revenue officers see a “no trespassing” sign in a rural, possibly fenced residential premises, they may wish to leave and request the assistance of a special agent or TIGTA agent to accompany them on a second attempt to contact the taxpayer.

In summary, a “no trespassing” sign might suggest to a revenue officer to proceed with caution. That caution is attenuated when the sign appears at a shopping mall, restaurant, or other business establishment that by implication invites the public to enter. Revenue officers should not assume that they cannot approach the front door of a residence that has a “no trespassing” sign. If the postman or other persons with legitimate business may approach, so may the revenue officer. The revenue officer should use his judgment based on the facts and circumstances whether to proceed when a “no trespassing” sign is in evidence.

A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means.

Declaration of the Rights of Man

Over and over again courts have said that there is nothing sinister in so arranging one's affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.